New Voting Laws: Forward-looking Or A Step Back?

I'm Michel Martin and this is TELL ME MORE from NPR News. Today we are going to spend much of the program talking about the consequences of a couple of this term's major Supreme Court rulings. In a moment, we'll hear about how activists on both sides of the gay marriage issue are coming to terms with the expansion of marriage rights for same-sex couples, at least in states that already recognize gay marriage.

But we're going to start today with another Supreme Court decision that sparked passionate debate all year, and that was the decision limiting enforcement of the Voting Rights Act. Many state legislatures across the South have already started or accelerated efforts to amend their own voting laws, now that prior federal approval for these changes is no longer required.

Joining us to talk about this once again, Spencer Overton. He's a professor of law at George Washington University. Also joining us is Hans von Spakovsky, he's a senior legal fellow at the Heritage Foundation, both of us — both of them have been with us throughout the term talking about these issues, and both of them also previously served in the Justice Department previously in two different administrations. Welcome back to you both, thank you both so much for speaking with us.

HANS VON SPAKOVSKY: Thanks for having us.

SPENCER OVERTON: Thank you, Michel.

MARTIN: So Professor Overton, you were very critical of the Supreme Court's decision in this case, and one of the reasons that you cited is that there are a number of states you felt were already moving to suppress minority voters' opportunities to vote. What are the things — are you seeing these things now? Are you seeing what you feared?

OVERTON: We are seeing those things, Michel. And it's important to protect the integrity of our elections, but politicians should not manipulate election outcomes by making it harder for millions of eligible Americans to vote. Now two hours after the court's decision, Michel, the Texas attorney general announced that he would immediately implement a restrictive documentation requirement that federal courts had previously found disproportionately burdened minority voters.

Now this Texas law, it allows voters to use a concealed handgun license to vote, but not an ID card issued by a college or an employer. Similar restrictive documentation requirements are afoot in Mississippi, Alabama, Virginia, and North Carolina. North Carolina is also manipulating a rule - politicians are trying to roll back early voting there.

MARTIN: When you say manipulating - that's a value judgment. Tell me why you feel that it has that effect.

OVERTON: Because it makes it harder for many eligible Americans to vote, and it's being pushed forward along party lines. And really, the big problem is not actually at the state level. The big problem is at the local level. You remember under Section 5, 85 percent of the changes that were blocked were at the local level, and many of those are not partisan. A lot of the attention has been on these national changes like ID and rolling back of early vote. But the biggest concern is at the local level.

MARTIN: Hans von Spakovsky, we didn't have an opportunity to hear from you when the decision was immediately rendered, so why don't you just give us your take on it first? And then how do you respond to Professor Overton's comment that these states or these localities are immediately taking efforts to keep certain people from voting?

VON SPAKOVSKY: Well, look, the decision was a perfectly logical, rational one. 'Cause what the court said was that, look, history did not end in 1965, and in 2006, when Congress renewed Section 5, which only requires certain states to get preapproval from the federal government for the voting changes - they didn't update the coverage formula.

And as the court pointed out, they said look, if Congress was starting from scratch - if in 2006 they were first passing Section 5, it would have been irrational for them to use 40-year-old turnout data. And the reason Congress didn't update the formula in 2006 was because if they'd used current coverage turnout data, none of the states covered under Section 5 would be covered.

MARTIN: How do you respond to Professor Overton's point that a lot of these changes seem to be taking place along partisan lines, and that it does seem to be directed at certain people who have, you know - that there just seems to be a partisan slant to these changes, I mean, how do you respond to that?

VON SPAKOVSKY: Well, first of all, you know, look, I like and I respect Spencer, but his constant claim that voter ID keeps people out of the polls, we know is not true. And how do we know? Because we've got turnout data from states like Georgia that have had voter ID in place for years.

In the May 2013 reports that the Census Bureau just put out - on the November election - it shows that Georgia - more blacks voted than whites, and Georgia's one of the states with one of the strictest photo ID laws in the country. That census report shows the same thing for Indiana. So this idea that ID keeps people out of the polls, we know, is simply untrue.

The fact that goes on partisan lines, I think is a sad reflection on the leadership of the Democratic Party, the constituents of the Democratic Party don't agree with that, because the polling shows that a majority of blacks, a majority of whites, a majority of Democrats actually support photo ID cards.

MARTIN: Well, let's just deal with the substance of the people who actually went to the polls, Professor Overton. It is true, isn't it, that African-American voters went to the polls at historic rates in 2012, so does that not indicate that minority voters are prepared to deal with these issues if they are motivated to vote? In fact, in some jurisdictions, they outvoted whites.

OVERTON: I think that's right. I think there are a couple of points. One, this isn't just about turnout data, this is about politicians manipulating election rules. Data shows that in particular areas, actually, minorities trailed whites in terms of turnout. But again, it's not just turnout, it's about things like Nueces County, Texas, where Latinos reach 56 percent of the population, they grew to that, and then the incumbent county officials manipulated the election rules to dilute the voting strength. They...

MARTIN: How, how?

OVERTON: They racially gerrymandered the district. So there were five districts, three of them were held by whites, and once it got to 56 percent Latino - the area - they redrew the district so that Anglos would continue to control three of them. And this is the kind of thing that happens across the country.

MARTIN: If you're just joining us, we are talking about the future of voting rights, our guests are Professor Spencer Overton of George Washington University, and Hans von Spakovsky of the Heritage Foundation. Both previously served in the Justice Department, serving in different administrations.

You know, one of the justices talked about this, Hans von Spakovsky, in her dissent - I think it was Ruth Bader Ginsburg - and one of the points she made is that generally you don't dispense with a regulation because it's been too successful. You dispense with something because of disuse. When you consider the number of these changes that were submitted by localities, that were rejected by the Justice Department because they were deemed to have - under the previous regime which allowed them to scrutinize these changes in advance, doesn't that suggest something to you?

VON SPAKOVSKY: No, it doesn't because, in fact, the overwhelming number of changes submitted were approved. And you cannot treat states differently unless you have got dire evidence of discrimination, and that's why, look, in 1965, Section 5 was upheld. But it is no longer the Jim Crow South. And on Spencer's point, if he believes a particular redistricting plan is somehow discriminatory, well then, you file a lawsuit under Section 2 of the Voting Rights Act, which was not struck down. That's the part of the act that is, in fact, nationwide. It's permanent and it bars discrimination in voting. And you can prove your case in court and get something like that remedied.

MARTIN: We wanted to make the focus of our conversation today on what should happen now. So why don't we start there and then - Spencer Overton, you've already told us some of the actions that state legislatures and localities are taking now. What you think should happen now? What would you like to see happen now?

OVERTON: Congress should update the Voting Rights Act. First, Congress should update preclearance so that areas with a recent or new voting rights violations are required to preclear their election changes. Second, Congress should update litigation so that lawsuits are more efficient and effective in stopping unfair rules before they are used in elections and harm voters. Third, Congress should require that all areas disclose information about the effects of their election law changes. More transparency would deter a lot of bad activity. Again, the biggest problem here is politicians manipulating rules to win elections.

MARTIN: Hans von Spakovsky, what about you? What do you think should happen now, if...

VON SPAKOVSKY: Well...

MARTIN: ...Anything?

VON SPAKOVSKY: Well, I'm not sure what Spencer is talking about. You can today go to court, and if you can prove your case in court under other parts of the Voting Rights Act, you can actually get an order from a judge saying that for future voting changes, you're going to have to come to the court and get it approved. So you can already do that.

The only way Congress could update Section 5 is if they can produce evidence that there is current discrimination that would justify treating one particular county, one particular state, differently. And as for transparency, every state that I know of has a state equivalent of the Freedom of Information Act that allows people to get information and public documents on actions taken by local governments.

MARTIN: So what should happen now, in your opinion, if anything? Wait and see?

VON SPAKOVSKY: I, I don't...

MARTIN: People should sort of go to the polls in good faith and assume that they're going to be treated fairly...

VON SPAKOVSKY: No, they...

MARTIN: ...And if they're not...

VON SPAKOVSKY: ...They...

MARTIN: ...Then what should happen?

VON SPAKOVSKY: I don't think anything needs to happen in Congress because I don't think Section 5 is required today. But if people believe they've been discriminated against, then, yes, take action under Section 2. Call the Justice Department, convince the Justice Department they should sue, and they will go to court. When I was a justice, we often sued under Section 2 if and when we found discrimination.

MARTIN: Spencer Overton?

OVERTON: Lawsuits aren't sufficient right now. They're not the best tools and here's why: lawsuits can cost millions of dollars, lawsuits can take years, lawsuits miss a lot of under-the-radar manipulation and too often lawsuits don't stop unfair voting rules before they're actually used in elections and harm voters. Now, FOIA, which...

MARTIN: The Freedom of Information Act.

OVERTON: ...Freedom of Information Act is not sufficient. We need a disclosure regime. We use disclosure with securities, you know, when companies sell stocks and bonds. We have disclosure in antitrust. Before companies merge, they have to disclose certain information. A lot of states have racial impact statements before they enact criminal legislation. Also, in campaign finance, we have disclosure. Sunlight is the best disinfectant.

MARTIN: Hans von Spakovsky, we only have about 30 seconds left. What - given the state of the relationships in Congress, do you believe that any of these actions are actually going forward, or is it really the status quo has been laid out by the court and that's what we're going to live with for now?

VON SPAKOVSKY: I...

MARTIN: Do you think there's a prospect for letting the Congress taking this up?

VON SPAKOVSKY: I think Congress is going to have a hard time moving forward with updating Section 5 because they are not going to be able to come up with the evidence to show that different states need to be treated differently.

MARTIN: Hans von Spakovsky is a senior legal fellow at the Heritage Foundation. Professor Overton, I gave you the first word, so I'm giving Hans von Spakovsky the last word. Spencer Overton is a professor of law at George Washington University. They were both kind enough to join us once again in our Washington, D.C. studios. Thank you both so much again for a spirited and civil conversation.